The High Court of Australia has released a landmark decision, Love v Commonwealth of Australia  HCA 3 (11 February 2020), ruling by majority that Aboriginal Australians are not within the reach of the “aliens” power conferred by s 51 (xix) of the Constitution.
Two overseas-born indigenous men faced deportation from Australia after failing tests under the Migration Act 1958 and having their visas cancelled. Neither man holds Australian citizenship, however each has an Australian parent and identifies as an indigenous Australian.
Mr Love is a citizen of Papua New Guinea and in May 2018 he was convicted of assault occasioning bodily harm and was sentenced to 12 months' imprisonment. He was then taken into immigration detention on suspicion of being an unlawful non-citizen. Mr Love identifies as a descendant of the Kamilaroi tribe of Aboriginal people, and he is recognised as such by an elder of that tribe.
Mr Thoms is a citizen of New Zealand, identifies as a member of the Gunggari People and is accepted as such by members of the Gunggari people. In September 2018 Mr Thoms was convicted of a domestic violence offence and sentenced to 18 months' imprisonment. After commencing court-ordered parole on 28 September 2018 he was taken into immigration detention on the same day.
The 4-3 split decision has been described by the Morrison government as creating “a new category of persons”, someone who is neither an alien nor a citizen.
Mr Thoms has now been released from a Brisbane detention centre. However the High Court was unable to agree on whether Mr Love was an Aboriginal Australian and ordered a further hearing to investigate. The agreed facts of the case concerning Mr Love did not go so far as to establish that acceptance by one elder of the Kamilaroi group is sufficient according to the laws of that group.
“Aboriginal Australians have a unique connection to this country; it is not just ancestry or place of birth or even both. It is a connection with the land or waters under Indigenous laws and customs which is recognised under Australian law. The Australian Citizenship Act has not removed or modified that connection. Nor has the Parliament removed or modified that connection by other legislation. Whether the Parliament could remove or modify that connection need not be decided. Aboriginal Australians are not foreigners within the constitutional concept of alien under s 51(xix).” (Gordon J at 373).
“… even if an Aboriginal Australian's birth is not registered and as a result no citizenship is recorded, or an Aboriginal Australian is born overseas without obtaining Australian citizenship, they are not susceptible to legislation made pursuant to the aliens power or detention and deportation under such legislation” (Gordon J at 374).